The Legal Language Explorer

Through RSS feeds and a well-organized iGoogle Home Page, I have learned about the coolest web based search tool: The Legal Language Explorer. This tool, in beta release, searches U.S. Supreme Court decisions from 1791 to 2005 for key words and phrases and then plots graphically the frequency of the word or phrase usage. It also provides a list of the cases, which can be easily and quickly accessed through hyperlinks. Although, any database search tool can provide a search list, a frequency graph is not a usual search engine tool. 

Why is this so interesting and exciting? This kind of visual graphing of results gives the researcher, or really anybody interested, another layer of meaning to case law. The frequency of word/phrase usage can provide much different information than a traditional word search. Generally, it can highlight a case which may be most relevant to your interest or research as typically if the word/phrase is used frequently, the case will revolve around that issue. Specifically, if you are searching for frequency of a "turn of phrase" like the "living tree" doctrine, which has been used to describe American constitutional law interpretation, this kind of search will provide those cases or even the case, in which the term was most used and when.

What may this tell us? This may tell us that during a particular time period the Court relied heavily on this term to determine constitutional cases. It may tell us, which Justice most frequently uses the term to interpret and decide cases. It will allow us to compare why the Court does not use the term in other cases. Or why it does not use this term at all. This kind of legal research, using statistical methodology and practices in legal theory, is called Empirical Legal Theory, a fairly recent legal theory/research area. I find this a most welcome and intriguing area of legal research as it can provide a deeper meaning to legal constructs through analyses of legal bias, judicial decision making, and public opinion. The possibilities of such research touches all areas of justice and enriches our understanding of the law through different perspectives. For more information, I recommend starting with the blog I subscribe to: Empirical Legal Studies, administered by a group of academics, who write and research in the area. 

Back to the Legal language Explorer. I searched for "living tree" and "living tree doctrine" and received no results, yet it is a recognized legal doctrine. However, when I searched for "living constitution", another phrase used for the same doctrine, I did receive some very interesting results. The graph produced three spikes: one case from 1963, one case from 1976, and one case from 1980.

The 1963 case, Gibson v. Florida Legislative Investigation Committee involved the Florida Legislature investigation of the N.A.A.C.P. or the National Association for the Advancement of Colored People for membership connections to "Communists." In some sense this case is the "perfect storm" of civil rights, involving discrimination of belief, race, and association. The ultimate decision in this case, reversing a lower Court decision, found such legislative intrusion was a violation of freedom of speech and association.

True, a fascinating case, but what is the significance of the search term, "living constitution"? It appears only once in the case, as a footnote referencing an academic article from the Harvard Law Review entitled Mr. Justice Black and The Living Constitution. Mr. Justice Black writes a brief concurring decision in this case and states:

In my view the constitutional right of association includes the privilege of any person to associate with Communists or anti-Communists, Socialists or anti-Socialists, or, for that matter, with people of all kinds of beliefs, popular or unpopular. I have expressed these views in many other cases and I adhere to them now.

But it is not Mr. Justice Black who refers to this Harvard review article but Mr. Justice Douglas, who writes a strongly worded concurring opinion. Although he does not directly quote from this article, he does say:

The need of a referee in our federal system has increased with the passage of time, not only in matters of commerce but in the field of civil rights as well. Today review of both federal and state action threatening individuals' rights is increasingly important if the Free Society envisioned by the Bill of Rights is to be our ideal. For in times of crisis, when ideologies clash, it is not easy to engender respect for the dignity of suspect minorities and for debate of unpopular issues. 

This decision is as old as I am, 48 years, and yet the words written are as relevant and as significant today as it was then. And all of this from a legal language search!

There are other significant ideas and learning possibilities from this search but I will leave you to speculate and connect. So try this new search tool, either for your next deep research analysis or just for pure curiosity and joy of learning a new connection. You just might learn something new and interesting or even inspiring.

P.S. We need this search tool in Canada!!!

Holiday Gifts For That Special Lawyer On Your List

In effort to help those who are still struggling with gift giving ideas, I am re-posting (kind of like re-gifting!) a previous blog, from November 26, 2011, on holiday gift giving ideas for the lawyer and non-lawyer on your list. And for those who just can't click on another link, I have reproduced it below:

I am feeling in the holiday mood, despite the Black Friday antics in the USA. If you have a lawyer on your list or just someone special, here are a few suggestions:

1. Donate

Donations are my favourite way of saying "I love you!" and there are many places that need our financial support and help. You can donate as a "gift" to the organization or in honour of a loved one or even in memory of those whom you will miss over the holidays.

As a lawyer in Alberta, I like to donate to the Lawyers Assist program run by the Law Society of Alberta. This organization assists lawyers in need of help for a myriad of reasons such as substance abuse, depression, and the like. Another organization I support is the Legal Archives Society of Alberta. History is so important and is an ideal worth supporting. 

As a criminal lawyer, I support the John Howard Society. This worthy institution provides support for offenders and their families. For a female touch, the Elizabeth Fry Society also helps female offenders in need of guidance. The rehabilitative aspects of these organizations benefits all of society. 

As a lawyer who teaches human rights, I like to donate to Simon Weisenthal Centre, which promotes human rights and holocaust education. The Canadian Civil Liberties Association works hard at preserving and protecting our human rights and civil liberties. The number of cases in which they receive intervenor's status is astounding. A donation there is a big "thank you" to those who volunteer their time to ensure our freedoms are protected.

Personally, I also support the World Wildlife Fund and the Canadian Cancer Society. Buying one of those breast cancer wristbands, I spoke of in my "Keep A Breast" campaign blog would be another great gift. Finally, if you are a member of an ethnic group, as I am, donate to a worthy cause in your specific community. 

2. Gifts Which Say "I Believe In This Worthy Cause"

There are a number of gifts you can give a lawyer or really anyone who cares about an issue. Those breast cancer wristbands for instance. Another idea is a "banned books" bracelet from the American Library Association website. The bracelet, which also comes in a childrens' book version, is made of small stylized front covers of various banned books. My favourite banned book included in the item is "To Kill A Mockingbird," which I recently saw as a play and blogged about here.

If you want to get more radical, buy a T-shirt from Rosa Loves, a website dedicated to what we are dedicated to: they provide T-shirt messages with meaning and as a vehicle for raising awareness and funds. Once the goal has been met, the uniquely designed shirt is no longer available to give way for the next project. An example, is this cool T to raise money for Armonia, a Mexican organization which helps the rural community.

3. Legal Stuff

There is a lot of legal "stuff" out there. If you are channeling former Secretary of State Madeleine Albright, then you will love the "great seal" pin from the Supreme Court Historical Society shop. Or if your taste runs more Canadian, try the cuff links from the Parliament of Canada gift shop. I prefer something to jazz up my dashboard and the bobble-head President Lincoln fits the bill from the Abraham Lincoln Presidential Library and Museum. Although, those Lincoln Logs bring back memories. As a fun piece of trivia, Lincoln Logs were designed by John Lloyd Wright, the son of the famous architect.

4. Retro Gifts

Any lawyer would like a gift that harkens to the nostalgic past. The Star Wars: The Blueprints book would make a nice gift in that memory lane category. This spoof of my son's first baby book Good Night iPad would also be a nifty choice but do not buy Robert Munsch'sclassic Love You Forever, unless you want a good cry. The best retro gift has to be The Beatles Yellow Submarine action figures. Admittedly, I have a few in my basement, including the Blue Meanie.

5. What I Would Like

A T-shirt from the Imaginary Foundation. I love this website, with its mixture of science, art, design, and everything cool, the Imaginary Foundation makes me feel creative. Just check out these T-shirts and you can see why. I just bought my son this Kaku shirt. I also want the National Film Board's production of Blackfly, based on a song by Wade Hemsworth. You can watch it here. Be prepared, it's addictive. I would also like the book recently published on JRR Tolkein's original illustrations. Finally, I would like everyone to watch or re-watch Lord Bertrand Russell's message of tolerance so we can truly have peace on earth this holiday season.

By the way, I did receive the JRR Tolkein's original illustrations as a lovely Chanukah gift.Happy holidays everyone!

Famous (Legal) Battles of Ideas

In yesterday's post on the anniversary of the first flight, I commented on the patent infringement suits between the Wright brothers and Glenn Curtiss, which essentially ended in a "draw," so to speak, as the corporate legacies of both, merged to form the Curtiss-Wright Corporation.

But such arguments over "who's on first," is, unfortunately, common to the arena of ideas. As famous as the invention of the airplane is, the invention of the telephone as a form of mass communication has had an even greater impact on the world's social and political structure. Yet here too was a legal battle over who intellectualized first. Although Alexander Graham Bell, in 1876, patented his electronic speech transmitter first, Elisha Grey, patented his "new art of transmitting vocal sounds telegraphically" only hours later. The ensuing patent suit ended with Bell's victory, which explains why we receive monthly bills from Bell Canada and not Grey Telephone Co. 

The patent concept arose from the written granting of rights and privileges by the monarchy under royal seal. Thus, the Latin "litterae patentes" means "open letter." The Venetian glass-makers of Renaissance Italy informally made use of this patent system. Thus, the first recorded patent in 1449 England was a patent for a glass-making technique.

Although I could not find an estimate of the number of patent law suits to date, a new study suggests the financial costs, in the past four years in the USA, have risen to $83 billion per year. In August 2011 alone, there were 294 patent lawsuits in the USA. According to some critics, we are experiencing a "patent bubble," with most major intellectual corporations involved in multiple patent suits. For example, Apple is embroiled in 97 "open patent" cases alone.

These "battles of ideas" span time, place, and area of expertise. The obvious conflicts come from the inventors: Thomas Edison was involved in multiple patent suits. In the gaming arena, the legal battle over Tetris was as epic as the game. The Zuckerberg vs. Winkervoss and Winkervoss (or Winkervii) battle spawned a movie. The Newton and Leibniz argument over Calculus, still rages today. 

Such arguments have spilled over into the Arts as well. Jeff Koons has been both the initiator and defender of artistic copyright suits. Stephen Joyce, James Joyce's grandson, has scrupulously, some say miserly, restricted the use of his grandfather's writings. Although June 2012 sees the end of his copyright fiefdom, the repercussions of his aggressive stance has caused no end of intellectual difficulties.

Musically, legal accusations abound. In a recent U.S Supreme Court argument on the limits of copyright legislation, Chief Justice Roberts reminded the Court of Jimi Hendrix and his famous rendition of the "Star Spangled Banner." In response to the government's support of the new legislation, Roberts commented on Hendrix when he stated "assuming the national anthem is suddenly entitled to copyright protection that it wasn’t before, he can’t do that, right?" 

Finally, we must come full-circle, as I am wont to do, and mention the penultimate legal battle of ideas: the Scopes Monkey Trial, famously depicted in the play/movie Inherit The Wind and upon which I have blogged previously. The clash of beliefs as represented by the Scopes case and still on-going today, is a real testament to how dearly we as individuals, and as society, hold onto our ideals and ideas.

Which makes one wonder: Is there a patent for that?

Were The Wright Brothers Right? A Lesson In Patent Law

On December 17, 1903, 108 years ago, Orville and Wilbur Wright made aviation history when their powered airplane rose twenty feet above the North Carolina coastline.

Little did they know then that this event would also launch a lengthy and bitter patent suit against another aviation marvel, Glenn Curtiss.

According to the Wright brothers, Curtiss used their patented lateral control and aileron design in his fliers. The subsequent legal battle drained both parties' finances and health. When the final decision was rendered in 1913, granting success to the Wrights, only Orville was alive to accept the verdict.

This, however, was not the end as Henry Ford, also a victim of patent litigation in which he lost an action before the same judge, persuaded Curtiss to test the Wright patents even further. The resulting patent battle resulted in another protracted action which resulted in a temporary stay of the original patent suit. 

World War I intervened and all suits were suspended as the government permitted sharing of all airplane patents in support of the war effort. The end of the war saw an end to the dispute as Orville Wright sold his interest in his company and chose not to reinstate the patent proceedings.

Of course the irony is as they say, history, when the Curtiss Aeroplane and Motor Company merged with the Wright Aeronautical Corporation in 1929 to form the Curtiss-Wright Corporation, which still survives today.

This merger, however, did not end the Corporation's protection of their patents in Canada and the United States. Two such cases, suggest that Curtiss-Wright's successes in that area have been less than satisfactory.

Indeed, patent litigation today is a risky, yet financially necessary, step to protect intellectual property. The financial stakes are high and litigation on these highly technical issues are traditionally drawn out and complicated. The recent U.S. Supreme Court decision ordering Microsoft to pay $290 million for patent infringements of a small Canadian IT company serves as a costly example.

Although we have made huge (flight) strides from 1903 Kitty Hawk, our patent laws and subsequent litigation seem to be move at a snail's pace. Perhaps, the legacy of flight should also be a lesson in the vagaries of litigation. Either way, today was truly a world-changing day in history.

Testifying Behind The Veil: The Human Factor

Yesterday I discussed the background to the N. S. case, which has recently been argued, on appeal, before the Supreme Court of Canada. The case is significant for two reasons: it raises the issue of conflicting Charter rights and how this conflict should be approached by the courts and it raises the issue of whether or not a witness in a criminal case is permitted to wear a face covering veil during testimony.

The second issue has broader implications in the public arena as it highlights the clash between traditional religious practices and the modern world, where identity and privacy seem to shrink in the public spotlight. In the age of mass communication, with over 500 million users of Facebook, the idea of masking one's identity, for whatever reason, appears to be not only redundant but also unacceptable.

Legally, such a stance seems to be against precedent as seen in the 2009 Supreme Court of Canada Alberta v. Hutterian Brethran of Wilson Colony case, wherein the Court upheld provincial legislation which required photographic driver licence identification even though such requirement conflicted with the religious precepts of the Brethren. Such picture identification was rationally connected to the real and pressing concerns of safety and security.

Politically too, keeping one's identity private is not acceptable as in the recent decision by the Federal Government to require the removal of face covering veils when fulfilling citizenship requirements, particularly when taking the citizenship oath. This decision does not appear to be decided on the basis of security and safety but, according to Immigration Minister Jason Kenney, on the basis that the "public declaration that you are joining the Canadian family ...must be taken freely and openly." 

In that backdrop, we return to the N. S. case and the decision of the Ontario Court of Appeal written by the Honourable Mr. Justice Doherty for the panel. In the decision, Justice Doherty perfectly sets out the issues at stake "in human terms": 

N.S. is facing a most difficult and intimidating task.  She must describe intimate, humiliating and painful details of her childhood.  She must do so, at least twice, in a public forum in which her credibility and reliability will be vigorously challenged and in which the person she says abused her is cloaked in the presumption of innocence.  The pressures and pain that complainants in a sexual assault case must feel when testifying will no doubt be compounded in these circumstances where N.S. is testifying against family members.  It should not surprise anyone that N.S., when faced with this daunting task, seeks the strength and solace of her religious beliefs and practices. 

M---d.S. is facing serious criminal charges.  If convicted, he may well go to jail for a considerable period of time.  He will also wear the stigma of the child molester for the rest of his life.  In all likelihood, the mere fact that charges have been laid has led many within his family and community who are aware of those charges to look at M---d.S. in a very different way. 

M---d.S. is presumed innocent.  His fate will depend on whether N.S. is believed.  In a very real sense, the rest of M---d.S.’s life depends on whether his counsel can show that N.S. is not a credible or reliable witness.  No one can begrudge M---d.S.’s insistence that his lawyer have available all of the means that could reasonably assist in getting at the truth of the allegations made against him.    

What is really being impacted by this case, which has now taken on national proportions, legally, politically, and socially, is the lives of two people. Certainly, the public's interest in the outcome of the case is valid. This is even more so considering the number and type of intervener's in the SCC case: the Ontario Human Rights Commission, the Criminal Lawyer's Association, the Women's Legal Education and Action Fund, and the Muslim Canadian Congress, to name but a few. However, we must not forget the "human terms" or human factor, which requires us to contemplate the life-changing possibilities of this ruling.